BFYD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Visa cancellation, request to revoke that cancellation and merits review 6 The applicant's visa was cancelled by a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, on 3 June 2019, when he was serving his sentence of imprisonment. That visa cancellation was mandated by s 501(3A) of the Migration Act 1958 (Cth). All further references in these reasons to statutory provisions will be to that Act unless indicated to the contrary. 7 In the notification of the visa cancellation decision, the applicant was invited to make representations to the Minister about revocation of that original decision, as provided for by s 501CA(3)(b). The applicant made such representations, but a second delegate of the Minister was not satisfied either that the applicant passed the character test, or that there was another reason why that visa cancellation decision should be revoked, as required under s 501(4)(b)(i) or (ii). As a result, on 16 April 2021, when the applicant was still in prison, the second delegate of the Minister decided not to revoke the visa cancellation decision. 8 As part of the unsuccessful request for revocation based on s 501(4)(b)(ii), the applicant said that he feared returning to China due to possible violent reprisals from the criminal syndicate to which his offending related, and also feared being detained, re-prosecuted, jailed and possibly killed upon return to China because of his drug convictions in Australia. Those claims were not accepted by the second delegate, essentially due to there being insufficient information provided by the applicant. 9 The applicant applied to the Tribunal for merits review of the second delegate's decision not to revoke the visa cancellation decision. 10 In his statement of facts, issues and contentions before the Tribunal, the applicant conceded that the failed the character test. That was an appropriate concession given that the 2018 sentences of imprisonment were for well over the 12 month threshold for a "substantial criminal record": see s 501(6)(a) and (7)(c). 11 The Tribunal hearing took place by video link on 1 and 2 July 2021, with the second delegate's decision being automatically affirmed if not set aside by 9 July 2021 (being 84 days from notification of the second delegate's decision): see s 500(6L). On 9 July 2021, the Tribunal affirmed the second delegate's decision.

Before the Tribunal 12 The Tribunal was bound by a direction made on 8 March 2021 by the Minister under s 499 in relation to that making of decisions in relation to visa refusal, visa cancellation and revocation of a mandatory visa cancellation (Direction 90). That Direction, applied by the Tribunal, provides the principles by which such decisions should be made, and the primary and other considerations required to be taken into account. 13 The primary considerations under Direction 90 are: (1) protection of the Australian community from criminal or other serious conduct; (2) whether the conduct engaged in constituted family violence; (3) the best interests of minor children in Australia; and (4) the expectations of the Australian community. 14 The applicant does not take issue in this Court with the Tribunal finding that primary considerations (1) and (4) weighed either relatively heavily or heavily against revoking the visa cancellation decision, or in finding that consideration (2) weighed relatively strongly in favour of that revocation. 15 The only point taken about the Tribunal's treatment of the second to fourth "other considerations" in Direction 90, being the extent of the impediments that the applicant would face if removed from Australia or the impact on victims (both found to weigh neutrally), or his links to the Australian community (found to favour revocation), concerned the impediment he claimed to face if he was returned to China. The asserted impediment was the risk of harm posed by the criminal syndicate in relation the ephedrine that was seized and not paid for, addressed below. 16 The present application turns on the Tribunal finding that the first "other" consideration in Direction 90 of Australia's non-refoulement obligations, which were found to weigh neutrally, principally because of the "paucity of information" provided by the applicant. 17 In addressing those obligations, the Tribunal started by (at [76]-[82]): (a) defining and outlining those obligations, including their source in the three relevant treaties, being the Refugees Convention (the 1951 Convention relating to the Status of Refugees), the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights; (b) noting the term of [9.1(7)] of Direction 90, describing it as stating that "where a person makes a claim which may give rise to international non-refoulement obligations and the person is able to make an application for a protection visa, those claims will be 'conclusively assessed' before consideration is given to any character or security concerns associated with the non-citizen", also noting that this requirement was also stipulated for delegates in Direction 75, but said that nevertheless the Tribunal had an obligation to consider any properly articulated claims; (c) summarising the claims the applicant made in his statement of facts, issues and contentions about his fears about returning to China based on fears that the Chinese authorities might punish him for offending in Australia; that the Chinese Government social credit system would make him unable to live and work safely in China, and that he fears reprisals from his former criminal associates connected with his offending. (d) reproducing the following quote in the applicant's statement of facts, issues and contentions of Article 10 of the Criminal Law of the People's Republic of China: Any person who commits a crime outside the territory and territorial waters and space of the People's Republic of China, for which according to this Law he should bear criminal responsibility, may still be investigated for his criminal responsibility according to this Law, even if he has been tried in a foreign country. However, if he has already received criminal punishment in the foreign country, he may be exempted from punishment or given a mitigated punishment. (e) reproducing [5.46] of a 3 October 2019 country information report for China from the Department of Foreign Affairs and Trade (DFAT Report): Articles eight to 12 of the Criminal Law outline provisions against double jeopardy. In practice, Chinese citizens convicted and punished for offences abroad may face punishment for the same offence on return to China. Authorities are less likely to pursue those who have committed offences overseas carrying a sentence in China of three years or less. Those convicted of offences that are more serious are more likely to be re-sentenced on return, depending on the offence and the severity of punishment served overseas: more severe punishment overseas would likely attract a lesser punishment on return. 18 The balance of the Tribunal's consideration of the applicant's claims in relation to non-refoulement were as follows: [83] While the Tribunal considers the prospect of further punishment in China is unlikely, I am generally aware that that country has very significant penalties for serious drug offences. Noting that this offending did not occur in the territory and did not therefore have an effect on the polity of China, I felt it important to seek submissions from the Respondent on the Australian Government's approach where a person is being repatriated to a country which maintains the death penalty for certain offences. [84] The Tribunal is aware that, where a person is extradited to a country to face charges which on conviction might lead to the death penalty, the Australian Government has a long established practice of requiring that the receiving State provide an undertaking that the penalty will not be in the range of possible sentences to be considered in relation to the extradited person. It was not clear to me whether a similar policy applies to persons being repatriated as an illegal non-citizen, noting that the situations are not entirely analogous. An extradited person is being transferred to face a judicial process in the receiving country. A non-citizen is being deported under the Act because their visa has been cancelled because of criminal or other serious conduct in Australia, not to face a legal process in their home country. However, I consider it may be relevant in a case where there is some evidence that the receiving State sometimes institutes its own separate proceedings against a returnee who has faced judicial sanctions abroad. [85] The Tribunal asked for a submission on this matter from the Respondent. On 5 July 2021, the Respondent replied in the following terms: [Question] In the course of removing a person under s 198 of the Migration Act 1958, is there a practice for the Australian Government to seek an undertaking from a receiving country that the death penalty will not be imposed/carried out? [Answer] Departmental policies contemplate that, in certain situations, the risk of harm may be able to be mitigated by seeking a diplomatic assurance from the government of the receiving country that the person will not be subjected to harm, such as through imposition of the death penalty. However, this is only one option that may be pursued to avoid refoulement. The Department conducts pre-removal clearances (PRC) for cases that involve risk factors that could relevantly engage Australia's non-refoulement obligations. The purpose of a PRC is to identify whether there are potential risks of Australia being in breach of its non-refoulement obligations under the following international treaties: • the Convention and Protocol relating to the Status of Refugees • the International Covenant on Civil and Political Rights and its Second Optional Protocol • the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Where a PRC identifies a risk that Australia may breach its non-refoulement Where a PRC identifies a risk that Australia may breach its non-refoulement obligations as a consequence of the person's removal, the case must be referred for further consideration of Australia's protection obligations or status resolution mechanisms. The typical mechanism for assessing protection claims is through an application for a protection visa. [86] This information from the Respondent provides the Tribunal with assurance that such a pre- removal clearance would be carried out in the event the cancellation of BYFD's visa was affirmed. [87] I stress that in seeking this submission, the Tribunal has no evidence that BYFD would be of interest to the authorities in China. The offences of which he was convicted occurred in Australia, although there is evidence of a connexion in that country to the syndicate. It is also clear that BYFD received a significant custodial sentence, which is relevant on the material in the Country Information Report as to how his situation would be viewed locally. [88] In the absence of any other evidence, the Tribunal cannot make a finding other than, based on the information in the Country Information Report, there is some potential for further action. If the Applicant had further corroborative evidence, that could be put before the Department in relation to any application for a protection visa. [emphasis in original] [89] In terms of the social credit system, BYFD gave evidence that he was concerned that he would be hampered in gaining future employment because of his criminal offending in Australia, and gave examples that this system makes it harder for certain persons who the Chinese Government have classified as "discredited" from purchasing train tickets or working in certain occupations. While there is evidence in the Country Information Report that this social credit system is being piloted, the report states much remains unknown" It is also not clear to the Tribunal whether criminal conduct abroad would bring BYFD into the purview of this system, where he has not committed any offences in China itself. In the absence of further information, the Tribunal is unable to make a finding that this pilot system would affect BYFD. [90] BYFD states that he fears harm from his former criminal associates. This matter is dealt with later in these reasons. Such harm is not within the ambit of the Convention or the other relevant international treaties because it does not found a fear of persecution for the reason group. [91] The Tribunal finds that this consideration weighs neutrally, principally because of the paucity of information before it. 19 The applicant also relies upon the risk of harm from the criminal syndicate, arising from the ephedrine being seized and him not paying for it. This was addressed by the Tribunal under a heading dealing with the extent of the impediments that he would face if removed from Australia, and necessarily returned to China as follows: [95] BFYD stated that some people connected with the Chinese end of the drug importation operation had called at his father's house, looking for him. This evidence was corroborated in her evidence by Ms JC in response to direct questions from the Tribunal. Ms JC said she had been told of this visit when she had spoken to her brother (the Applicant's father). BFYD said he was scared because he owed these people money, and they had the erroneous view he might have taken the drugs from the curtain package. [96] I am not convinced this would be an enduring problem, because BFYD will be able to point to ample evidence, including Court documents, which explain that the ephedrine material was intercepted and removed by the Australian authorities, before the package was resealed and delivered, and never reached him.

The grounds of review 20 By a further amended originating application, the applicant seeks to overturn the Tribunal's decision, alleging jurisdictional error in relation to the Tribunal's conclusions on the topic of Australia's non-refoulement obligations, which were not found to favour the revocation of the visa cancellation decision. He pleads the following two grounds: [1] Having accepted that the applicant faced a real chance of being punished again in China for crimes for which he has already been punished in Australia, the Tribunal failed to consider whether this engaged Australia's protection obligations. [2] The Tribunal's response to the applicant's fear of reprisal from his former associates did not deal with the totality of that claim (Reasons [95]-[96]). The applicant's concern was two-fold: (i) that his associates would think that he stole the drugs (dealt with); and (ii) that he owed his associates money (realistically, the more serious concern, and not dealt with). The failure to deal with this aspect of the claim was a failure to deal with important evidence.

The competing arguments 21 The substance of the applicant's argument on ground 1 is that despite the Tribunal's finding at [88] that there was, as claimed by him, a risk of harm sufficient to engage Australia's non-refoulement obligations, it failed to deal with the legal component of that claim in relation to his fears of harm both from the Chinese government, and by members of the criminal syndicate. The applicant relies upon key parts of the information that was before the Tribunal to demonstrate that he had not just asserted, but also established, a substantial non-refoulement claim, so as to ground the finding asserted to have been made by the Tribunal at [88], being: (a) his statement in support of his revocation application, in which he addressed the topic of being returned to China by reference to his fears, his fortnightly conversations with his parents in China, including about visits by violent people looking for him in 2018, and the Chinese laws referred to above; (b) the part of the DFAT Report at [4.10], under the heading "death penalty" summarising the stern approach taken by China to drug offences; and at [5.46] addressing conditions for returnees under the heading "double jeopardy" quoted by the Tribunal at [82] and reproduced above at [16(e)], referring to returnees facing prosecution there for the same offence committed overseas; (c) the submission by the applicant's lawyers to the second delegate, also before the Tribunal, and in particular the reference to a prior Tribunal decision of Liang and Minister for Immigration and Citizenship [2013] AATA 392, asserted to be similar to this case, in which non-refoulement obligations were found to be made out, and asserting that given his offending, the Chinese importation connection, and the severe view taken in China toward drug offending, there was a very high chance that he would be detained, prosecuted and jailed for his Australian offending; (d) the applicant's statement of facts, issues and contentions from [62]-[74] under the heading "International non-refoulement obligations", detailing his claims in this regard and the country material supporting them (in much the same vein as above). 22 The applicant contends that when the Tribunal at [88] referred to "some potential for further action" being taken against the applicant, that amounted to a finding that there was a real chance of that occurring, or in the language of jurisdictional error, a realistic possibility of leading to a finding in his favour which then had to be addressed and not merely noted. He therefore submits that once such a finding had been made the legal submission that flowed from that had to be resolved. That is, once the potential for some further action had been established to the satisfaction of the Tribunal, Australia could not, consistently with its non-refoulement obligations, return him to China. 23 The Minister counters by submitting in substance that, when read in the context of all of the reasons of the Tribunal on the topic of those obligations from [76] to [91], [88] of the Tribunal's reasons went no further than finding that it was possible that non-refoulement obligations could be engaged with more evidence or other information, but was not satisfied that this had been established. The Minister submits that the fair reading of [88] is that this was not equivalent to, or tantamount to, or necessarily entailing the consequence of an acceptance that there is a real chance of the applicant suffering a relevant kind of persecution or significant harm in China. Rather, the Minister submits, the Tribunal was saying that it did not have enough material to make a confident assessment of whether any non-refoulement obligation was owed. This conclusion is asserted to be the more natural way to read [88] in the context of the rest of the Tribunal's findings on this topic. 24 The Minister's submission was supported by a different evaluation of the material that was before the Tribunal and relied upon by the applicant. The Minister submits that the part of the DFAT Report reproduced by the Tribunal and relied upon by the application, which was not in any event of itself definitive, was saying no more than that, despite there being provisions against double jeopardy, this may still be faced by a Chinese citizen in some circumstances. The Tribunal at [83], in reaching the conclusion that the prospect of further punishment in China was unlikely, had noted that the offending did not occur there and therefore did not have an effect on the polity of China. Read fairly, this reflected at least a scepticism or doubt by the Tribunal that the circumstances of the applicant's offending would in practical reality attract re-prosecution in China. However, the Tribunal did not leave it at that. It sought and obtained an assurance that this would be properly considered by the Australian Government before any decision was taken to return the applicant to China, noting options such as diplomatic assurances or resort to a protection visa application. The overall thrust of the Minister's submissions is that the burden of the Tribunal's reasons were directed to what might happen if a non-refoulement claim was able to be made out, not that it had been made out. 25 In relation to the applicant's reliance on the prior Tribunal decision in Liang, the Minister submits in substance that the facts in that case were so different to the present as to be of little assistance. The former visa holder in that case had travelled to China and negotiated for the supply of drugs on Chinese soil. The Court of Appeal judgment in Australia had made it clear that the visit to China was not even simply to purchase a particular quantity of cocaine, but to put in place the source of supply on an ongoing basis. That this, Mr Liang had committed substantive offences in China. Even so, that prior Tribunal concluded in substance that it was speculative that Mr Liang would be prosecuted for offences committed in Australia, and based its non-refoulement obligations conclusion on the conduct that had taken place in China, in contrast to the finding in this case that the offending by the present applicant did not occur in China and did not have an effect on the polity of China. 26 The Minister also relied upon a number of cases dealing with the Tribunal and the ultimate question of compliance with non-refoulement obligations, being in essence an alternative submission if the Court were to find that the Tribunal had made a positive finding as to non-refoulement obligations: (a) In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; 285 FCR 463, Kenny and Mortimer JJ (with whom Abraham J agreed) said at [149]: In our opinion, read fairly, all the Tribunal was saying in its finding at [268] was that it took the statement of executive policy at face value: namely that Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists. As between one branch of the executive and another, especially where the Direction had binding force on the Tribunal, that could not be said to be an inappropriate position for the Tribunal to take. The appellant took no additional forensic or procedural steps in the Tribunal to obtain any further evidence to put before the Tribunal about how his particular case was being approached at executive level, or whether there was evidence that in other cases Australia was not adhering to that executive policy. (b) In XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 167; 280 FCR 535, Perry, Banks-Smith and Anderson JJ said at [67] that the primary judge in that case had been correct to find that "there was no material error by the Tribunal in finding … that any risk of harm to that appellant, if he was deported, was minimised by the fact that he could apply for a protection visa, and would not be refouled if he was found to be owed protection". The Tribunal in XFKR did not state, or need to state, that the risk would be eliminated by the fact of being able to apply for a protection visa, only that it would be minimised. 27 In the context of WKMZ and XFKR, the Minister submits that there was no error on the part of the Tribunal at [88], such as conflating the processes or criteria in s 36 for refugee claims, and the non-refoulement obligations in international law. The Tribunal went no further than to state correctly that the applicant could apply for a protection visa and provide more information to support his claim. None of this involved treating s 36 criteria as identical to international law criteria, but merely that a non-refoulement claim could be met by a successful protection visa application. 28 In reply, the applicant submits that in XFKR, the Tribunal did assess the discretionary value judgment that needed to be done on a hypothesis favourable to him, and concluded that non-refoulement obligations were outweighed by other considerations. The applicant submits that this is what was required of the Tribunal in this case and that the Minister's interpretation of [88] of the Tribunal's reasons should not be accepted.

Consideration of ground 1 29 The resolution of the competing arguments principally turns on the meaning to be given to the Tribunal's reasons at [83] and [88], in the context of the remaining paragraphs addressing non-refoulement obligations. First as to [83], the Tribunal's conclusion that the prospect of further punishment in China being unlikely has to be read with the balance of that paragraph. The Tribunal was not making any finding that the engagement of non-refoulement obligations had been established, but only the ground for the Tribunal to want to be assured about the mechanisms available for an assessment of such claims to take place because of the potentially dire consequences if there was a valid claim. The basis for that concern is set out at [84], and the seeking and obtaining of that assurance to the satisfaction of the Tribunal is then set out at [85]-[86]. 30 At [87] the Tribunal expressly states that it had no evidence that the applicant would be of interest to the authorities in China, noting that although there was evidence of a connexion to the syndicate in China, the offences of which he was convicted occurred in Australia, and he had received a significant custodial sentence here, which was relevant as to how that offence would be regarded there. 31 Both [83] and [87], in the context of [82] and [84]-[86], inform the meaning to be given to [88]. This is not an occasion upon which a beneficial reading of the Tribunal's reasons is required. A literal and contextual reading of [88] does not convey the meaning upon which the applicant relies. The Tribunal is referring to the absence of other evidence, in the context of the finding at [87] that there was no evidence that the applicant would be of interest to authorities in China. The Tribunal set out that it was only able to make a finding on the DFAT report that there was some potential for a further action by the Chinese authorities. That cannot reasonably be read as referring to the applicant's circumstances as he suggests, because of the finding of an absence of any evidence that he was of interest to the Chinese authorities. The issue is not about what had occurred, but about what the Chinese authorities knew of it, and the view that they would take of it. Accordingly, the basis for the finding of "some potential" for further action was based on no more than country information about the general approach taken by those authorities. 32 The last sentence of [88] makes clear what the Tribunal was ultimately saying: if the applicant had further corroborative material that supported his claims of a risk of being prosecuted by the Chinese authorities, that could be put before the Minister's Department in relation to any application for a protection visa. That too must be understood in the context of the information provided by the Minister in answer to the Tribunal's inquiry and reproduced at [85]. That is, the Tribunal was not leaving the addressing of any better non-refoulement claims that might be made to the protection visa process, but also to the pre-removal clearance process as well. 33 Even if I am wrong in the interpretation of [88], and the Tribunal did make a marginal finding in favour of the applicant as to his non-refoulement obligation claims, I do not accept that the Tribunal was required to do more with the material that it had before it. Both WKMZ and XFKR authorise the Tribunal not to determine to finality a non-refoulement obligation claim if the information before it is insufficient to complete that process. 34 It follows that the assertion of jurisdictional error in respect of the treatment of non-refoulement obligation claims has not been made out. Ground 1 must therefore fail.

Ground 2 35 The applicant's case on ground 2 turns on a narrow point. The applicant claimed to fear harm from reprisals from those involved in the criminal syndicate by reason of them thinking that he owed them money and had taken the ephedrine. He asserts that while the two points were linked, the Tribunal only addressed the claim in relation to the ephedrine and not in relation to the money, because the Tribunal's reasons at [95] stop short of dealing with the latter. The applicant asserts that even if the syndicate came to learn that he did not take the drugs, the prospect of them still thinking that he owed them money was real and had to be addressed. 36 While the Minister provided detailed written submissions on this ground, the essential opposing argument can be simply stated as it was in oral submissions, by reference to aspects the written submissions. In short, the Minister submits that the way in which the applicant presented his case to the Tribunal drew a link between the drugs not being in the package and the concern that the he expressed about debt to his former criminal associates, referring to the evidenced that the applicant gave before the Tribunal: "That's the people who sent the drug to me, and the drug got taken, so I took the drugs, so I owe them money." The Minister submits that based upon that evidence, it was open to the Tribunal to conclude that the applicant's case was that his former criminal associates think that he took the drugs, or was somehow responsible for them being taken, whether by the authorities or someone else, and that is why they consider he owes them money. 37 In my view, the rational way to read the Tribunal's reasons is that the issue of the ephedrine not being in the package that was delivered, and a debt arising from the sending of the ephedrine were not separate, or at least did not have to be regarded in that way by the Tribunal. The conclusion at [96] in any event encompasses both concerns. By referring to both features in [95] and then referring at [96] to "this", meaning both, not being an enduring concern because there was ample evidence that the applicant could point to which explain what had happened, meant that both aspects were in fact addressed. It is not the point that the Tribunal did not addresses the two aspects separately, because that was but one way in which this aspect could be addressed. No error, let alone jurisdictional error, in the approach taken by the Tribunal has been demonstrated. 38 It follows that ground 2 must fail.

Conclusion 39 As both grounds of review have failed, the further amended originating application must be dismissed with costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.